WASHINGTON – Tuesday is a potential watershed moment for America’s gay and lesbian couples. After rapid changes that have made same-sex marriage legal in all but 14 states, the U.S. Supreme Court will hear arguments over whether it should be the law of the land.
All eyes will be on the justices for any signals that they are prepared to rule that the Constitution forbids states from defining marriage as the union of a man and a woman. On the sidewalk outside, people have been waiting in line since Friday for prized seats for the historic arguments.
The cases before the court come from Kentucky, Michigan, Ohio and Tennessee – all of which had their marriage bans upheld by the federal appeals court in Cincinnati in November. That is the only federal appeals court that has ruled in favor of the states since the Supreme Court, in 2013, struck down part of the federal anti-gay marriage law.
A decision is expected in late June.
Even as recently as October, barely a third of the states permitted it. Now, same-sex couples can marry in 36 states and the District of Columbia, a dramatic change in the law that has been accompanied by an equally fast shift in public opinion.
Now that everyone else has weighed in through mountains of legal briefs, the justices get to say, or at least hint, what they will decide. On Tuesday, five lawyers will present arguments over 2½ hours to help the court conclude whether, on this question, the 14 remaining states must join the rest of the country.
The main thrust of the states’ case is to reframe the debate.
“This case is not about the best marriage definition. It is about the fundamental question regarding how our democracy resolves such debates about social policy. Who decides: the people of each state or the federal judiciary?” John Bursch, representing Michigan, wrote in his main brief to the court.
The push for same-sex marriage comes down to fairness, said Mary Bonauto, who will argue on behalf of the plaintiffs. The people who have brought their cases to the Supreme Court are “real people who are deeply committed to each other. Yet, they are foreclosed from making that commitment simply because of who they are,” she told reporters last week.
Arguments made by Bonauto, other lawyers for same-sex couples and more than six dozen supporting briefs have strong echoes of the 1967 Loving v. Virginia case, in which the Supreme Court struck down state bans on interracial marriage. In that case, the justices were unanimous that those bans violated the constitutional rights of interracial couples.
In 2013, the justices – divided 5-4 – threw out part of the federal Defense of Marriage Act that prevented legally married same-sex couples from receiving a range of benefits. Kennedy, joined by his four more liberal colleagues, explicitly left open the issue now before the court.